Story of the Session of the California Legislature of 1909

by Franklin Hichborn

The Commonwealth Club amendments regarding trial juries dealt with the problem in the same broad spirit. The chief object sought was to avoid the trying of citizens called for jury service[73]. The proposed laws obviated this by leaving it with the Judge to determine the qualifications of the juror, that is to say, the examination of jurors in criminal cases was to have been taken out of the hands of the lawyers and required of the Judge. To compensate the defendant for whatever substantial disadvantage he might suffer, the number of his peremptory challenges was materially increased.

To prevent the setting aside of judgments on trifling technicalities, the proposed amendments provided that the Judge should fix the legality of the jury panel by general order, after which challenges could not apply to the whole panel, although they still held as to individual jurors.

One of the most important of the provisions regarding trial jurors was that the reading of mere newspaper reports of a case should not disqualify a trial juror, unless it were shown that the newspaper article purported to be a true copy of the official testimony.

The fact that under the present law the term "reasonable doubt" is not given legal definition paves the way for frequent miscarriages of justice. The Judge is required to define the term for the jury. The defendant may take exception to the definition, thus paving the way for technical defense in the upper Courts. The Commonwealth Club bills defined "reasonable doubt" to be, "that state of the case which, after the entire comparison and consideration of all the evidence in the cause, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."

Amendments were also proposed to the law governing instructions to juries. Under the present rule, each side presents a long list of instructions for the Judge to give to the jury. If the Judge refuse to give the instructions as requested, objections to his refusal can be taken and made basis for a technical defense[73a]. Under the proposed amendments objection could be made only to such instructions as were given, not to those which were not presented to the jury.

In none of those proposed amendments could the substantial rights of the defendant be said to be encroached upon. But the proposed laws did clear away a mass of technicalities which has kept many a scamp out of jail.

The proposed amendments dealing with appeals in criminal cases aimed at prompt judgment and sentence after conviction, prompt appeal and conclusion of the case.

To this end, the measures provided that upon conviction the defendant must be sentenced forthwith, and if appeals were taken, taken on the judgment. Instead of the cumbersome bill of exceptions, which required weeks and sometimes months to prepare, it was provided that the entire testimony given at the trial, together with the complete minutes of the proceedings, should be sent to the higher tribunal. This would place before the Appellate and Supreme Courts all the facts and testimony which the Lower Court had considered. This feature of the Commonwealth Club bills was also covered by the measures which had been prepared by the Bar Association.

Under the proposed Commonwealth Club amendments, the defendant was not permitted to appeal on questions referring to the trial jury panels or the Grand jury, nor on any error not affecting his substantial rights. Error in an immaterial issue, or of not sufficient importance to affect the substantial rights of the defendant, was not, under the provisions of the Commonwealth Club bills, to be held ground for reversal.

"We believe," said the Committee which drew up the Commonwealth Club bills, "that what we have proposed is in no way revolutionary and deprives the accused person of no substantial right. The amendments proposed are merely designed to make the present law more effective, to relieve the Courts from the necessity of considering trivial matters and to aid in determining more promptly whether a person accused of crime is innocent or guilty."